Federal Appeal

Administrative Law

Freedom of information
Extension of time limit to deal with request did not meet requirements of s. 9(1) of Access to Information Act (Can.)

Requester requested from Department of National Defence (DND) access to records relating to sale of certain military assets. DND notified requester that, pursuant to s. 9(1) of Access to Information Act (Can.), it was extending 30-day time-limit set out in s. 7 by 1,110 days in order to deal with request. Requester filed complaint with Information Commissioner of Canada. DND’s extension was found to be invalid, as criteria for extension under s. 9(1)(a) of Act were not all met and time taken under s. 9(1)(b) was unreasonably long. Commissioner applied for judicial review pursuant to s. 42 of Act seeking declaration that DND was in state of deemed refusal for having failed to give access within time-limits set out in Act and for order directing DND to respond to request within 30 days. Federal Court Judge determined that she did not have jurisdiction pursuant to s. 42 of Act to issue declaration. Federal Court Judge concluded that, as long as there was compliance with time extension that was taken, there could be no deemed refusal pursuant to s. 10(3), regardless of reasonableness of extension. Commissioner appealed. Appeal allowed. Reading of s. 10(3) of Act that would prevent judicial review of extension was not what Parliament intended. Federal Court Judge’s interpretation meant that length of time-limit would lay exclusively in hands of government institution that asserted it and escape judicial review, regardless of duration. Section 7 of Act required government institution to respond to information request within 30 days. Requirement was subject to exceptions including power that might be exercised by government institution to extend time pursuant to s. 9 but period taken must be reasonable, considering circumstances set out in s. 9(1)(a) and/or s. 9(1)(b). Deemed refusal arose whenever initial 30-day time-limit expired without access being given in circumstances where no legally valid extension had been taken. Right to judicially review validity of extension arose pursuant to ss. 41 and 42 of Act upon expiry of 30-day time-limit and Federal Court had jurisdiction to entertain application for judicial review and to consider validity of extension of time DND asserted. Extension did not meet requirements of s. 9(1) of Act. DND was declared to have entered into state of deemed refusal pursuant to s. 10(3) of Act upon expiration of 30-day time-limit set out in s. 7.

Canada (Information Commissioner) v. Canada (Minister of National Defence) (Mar. 3, 2015, F.C.A., Marc Noël C.J., David Stratas J.A., and A.F. Scott J.A., File No. A-163-14) Decision at 238 A.C.W.S. (3d) 789 was reversed.  250 A.C.W.S. (3d) 183.

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